European Commission Looks To Backdoor In ACTA By Pushing For Same Results Through 'Voluntarism'

from the ooh-that's-clever dept

This year saw two huge victories for digital activism: against SOPA in the US, and against ACTA in the EU. The big question is now: what will be the next moves of those behind SOPA and ACTA as they seek to regain the initiative? For SOPA, we've had a clue in the call for a "Son of SOPA" from the US Chamber of Commerce. But what about the European Commission?

Although it is supposedly waiting for the European Court of Justice to rule on the compatibility or otherwise of ACTA with European law, that's more a matter of saving face -- even a positive result there is not going to bring ACTA back in its original form. But two public consultations from the Commission that are currently open for comments share a common theme that points to one possible approach to bringing in some of ACTA's ideas through other means: the increased use of extrajudicial punishments.

The first one, which closes soon -- on 5 September now extended to 12 September -- concerns Europe's e-commerce directive. But its title makes clear that the consultation is actually much more tightly focused on one particular aspect. As "A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries" suggests, the consultation is really about trying to stop online sharing. Although the use of the word "clean" is clearly intended to suggest that this is about removing extreme material like child pornography, the detailed questions reveal that the central concern is taking down unauthorized copies of legal content.

The method for achieving that is what the European Commission calls "notice and action" -- broadly similar to the DCMA's "notice and takedown" approach. The Commission tries to suggests that such "notice and action" has always been part of the e-commerce directive, but as Monica Horten points out in a recent post, that's not true:

the Commisson appears to be trying to re-write history. It says that Article 14 [of the e-commerce directive] forms the basis for Notice and Action procedures. That was certainly not the intention of Article 14.

The E-commerce directive, with its provisions for mere conduit and exemptions on the liabiilty was the result of a political compromise thrashed out in 2000 between the ISP industry and others, such as the copyright industries, who wanted it to incorporate a notice and takedown regime. However, that notion of notice and takedown was explicitly rejected.

Some of the questions in the e-commerce consultation give the impression that what the European Commission would like to see are voluntary notice-and-action agreements between service providers and media companies that would make allegedly infringing material simply disappear without any judicial process or appeals. It's the perfect solution, since it doesn't require new legislation, and is based on the service providers' fear that if they don't go along with this approach they will find themselves liable for the infringing activities of their customers.

Please share your knowledge, ideas and opinions about how best to ensure that voluntarism receives its appropriate
share of attention in the policy-making toolbox. How best can we address the grey area of self-regulation that are not quite
as purely autonomous as the wording in the 2003 Inter-institutional Agreement on better lawmaking implies, and yet has none
of the characteristics required in that Agreement for a system to qualify as co-regulation, and how best to give a new momentum
to self- and co-regulation and open voluntarism to ensure that they are duly considered and practiced when they appear to be
the most efficient route to the societal benefits in point. This does NOT mean voluntarism should substitute for lawmaking and
regulation in any systematic manner, rather making the best possible use of voluntarism is critical to a highly effective policy
approach. Please use the text box below or upload any additional relevant material.

Even though this comes across as harmless bureaucratic nonsense, it conceals a deadly serious intent: to shift from rules based strictly on those laid down by the relevant laws, to one "making the best possible use of voluntarism." Translated into English, it means that where the European Commission can't push through the legislation or treaties that it wants (as with ACTA), it will encourage ad-hoc "voluntary" agreements and self-regulation that achieve the same aim (as the e-commerce directive consultation seems to be pushing for).

It's a clever tack to take, because it is hard to motivate people to oppose something that is so ill-defined and therefore apparently unthreatening -- even the name "voluntarism" sounds rather appealing, especially compared to the more honest description of "extrajudicial punishment". But the danger lies in that very vagueness, which allows all kinds of rules and behavior that, if proposed in the normal way as traditional legislation, would be completely unacceptable and fiercely resisted.

Name And Shame

This is an attempt to get ISPs to sign up to a scheme for damaging their relationship with their own customers. In any marketplace where there is anything like commercial competition between ISPs, then such a scheme has no hope of happening. The ISPs are all very well aware that Hollywood would like to book them in for an ass raping. The ISPs are not going to have a bar of it.

It is time we started paying a lot more attention to exactly who is continuing to push these idiotic proposals. There should be a lot of naming and shaming going on.

I submitted my comments on the consultation, despite their best efforts to bore me into submission.

Several questions irritated me but question 24 at least allowed me to focus my wrath on the whole exercise:

Article 14 of the E-commerce Directive does not specify the illegal content to which it relates. Consequently, this article can be understood to apply horizontally to any kind of illegal content. In response to the public consultation on e-commerce of 2010, stakeholders indicated that they did not wish to make modifications in this regard. 24. Do you consider that different categories of illegal content require different policy approaches as regards notice-and-action procedures?

What kind of nutty stakeholders in 2010 didn't feel there was any need to differentiate between the measures that might be taken for child pornography compared to the measures that are (not) necessary for someone publishing a copyright infringing video on YouTube?

But copyright bots took it down, because clips from Neil Gaiman's shows were being shown...just prior to Neil Gaiman making an acceptance speech.

bob, darryl, and that Anonymous Coward (no, not our TAC), that is why we hate moves like these. In order to protect the sanctity of copyright, speech that is clearly 100% legal is allowed to be censored. THAT IS CENSORSHIP, not your whining about the Click to Show here on Techdirt.

Not having notice and take down provisions in law are very much a negative for services online. Without DMCA, sites like YouTube would have been sued out of existence in their first few months. They would have just been violating copyright and that would have been that.

DMCA gives them an out, a way to act like innocent hosts (rather than the publishing service they are), and get away with widescale copyright violations, just by complying with notices.

Assumption that allegations are always true

"the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent"

What the commission seems to want to do is to equate such knowledge with knowledge of *allegations* of infringement (i.e. a notice-and-takedown system). However, that's intellectually dishonest. Of course it is possible to be aware of allegations without being able to tell whether they are reasonably true or not. To use the words of the directive itself it may not at all be "apparent" to the third-party.

As always there is this faulty assumption that allegations will always be true, presented in good faith and take into account fair-use-like legislation or case-law. There are ample historical examples that that just isn't the case.

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The primary problem is that we are getting closer and closer to the question: What european online services? The Cookie-directive has been such a menace that I still need to see a government homepage live up to these laws. Put in another way so everyone can see the hypocricy:

"If you do not scare your "customers" away, you are doing something illegal."

Re: Assumption that allegations are always true

I am speculating: Maybe it is just meant to be and we should accept a clearer formulation of that idea.
What is truely needed, no matter what, is a way to make it easy to prove and punish false accusations very hard if they are made under these "allegation is always trueth" laws.

that arse hole de Gucht needs to be sacked and the Commission needs to be De-Commissioned!! on top of that, why should anyone and everyone pay to police the internet on behalf of an industry that refuses to pay to police it's own stuff, adapt to the 21st century or give customers what they keep asking for? if this goes through, what will the next industry be that wants preferential treatment? what will the next thing be that has to be banned/shut down?

Re: Re: Assumption that allegations are always true

Point me to one example where such punishments have been implemented and effectively stopped bogus takedowns (including of material that is or ought to be considered as fair-use) and it would be easier to buy your argument...

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bob, darryl, and that Anonymous Coward (no, not our TAC), that is why we hate moves like these. In order to protect the sanctity of copyright, speech that is clearly 100% legal is allowed to be censored. THAT IS CENSORSHIP, not your whining about the Click to Show here on Techdirt.

Tough shit. You whip up the masses with hysteria and FUD to block any law that would set up procedures to reduce infringement and then decry the inevitable private initiatives. This result was as predictable as tomorrow's sunrise. Deal with it, you brought it on yourselves.

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Online services would prefer not to deal with the notice and takedown procedure. They agreed to it to get the separate safe harbor provisions because they knew the entertainment industry would sue them for the actions of their users otherwise. Of course, as it turned out, they've been suing despite the safe harbors, so maybe the tech companies should have fought the DMCA after all.

I don't know if you're intentionally conflating the notice and takedown provision with the safe harbors in order to pretend ISPs and such actually enjoy the former, or just made a mistake, but I gave you the benefit of the doubt.

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So, you're willing to strip everyone else of their rights to protect your own? (Or at least what you think your rights are). You do realize that changes copyright from a public agreement to a totalitarian regime, right?

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You think youtube has people personally approve EVERYTHING they host, and are therefore liable for the content they host? Umm...no, they don't. That means they are NOT a publisher. They are a service provider. They are no more liable for their users actions than the post office is for theirs.

Re: Re: volunteerism vs. sharing

Re: Name And Shame

One name stands out above all others: Karel de Gucht, European Commissioner for Trade. He seems to be pushing this Hollywood agenda in Europe. Luckily, Neelie Kroes is EU Commissioner for the Digital Agenda, who favours freedom and progress more.

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I never whine.

I do, and will continue to, complain when these companies enact policies that are unjust and harmful and pressure them to change their ways. I will also encourage people to use competing services that behave in a responsible way.

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I never whine.

Oh, please. You've personally elevated sniveling to an art form. You should be giving lessons to some of the less developed crybabies on Techdirt. I'm particularly impressed with the way you excel in contrived indignation and meaningless rhetoric.

A carefully crafted smokescreen, typical of the EU

This is standard EU technique. Never make the mistake of laughing at the reams of babbling bureaucratic inanity that endlessly spew forth from the EU. These things are carefully crafted down to the last comma, and serve the same purpose as the smokescreens laid down by wartime destroyers so the enemy could not see they were firing torpedoes.

If a destroyer hides like that, you know it is trying to sink you. If the EU does so, you know it is trying to enslave you. How anyone can keep a straight face while writing democracy and EU in the same sentence is beyond me.

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Your belief that legislation would somehow improve this is bullshit. Already copyright holders are very keen on overstepping existing law to do whatever they want. Approved legislation would not result in negotiation. The best it would do is give them an excuse to whine to the judges, "But you gave it to us before! Gimme gimme gimme!"

Backdoor or not, once enough people get hit with collateral damage they'll be pissed regardless of whether it's public and demand action.